The Texas Health and Human Service Commission (HHSC) adopts new §354.1177, concerning the Medicaid Electronic Visit Verification (EVV) System, without changes to the proposed text as published in the January 24, 2014, issue of the Texas Register (39 TexReg 343). The text of the rule will not be republished.

Background and Justification

Texas Government Code §531.024172, adopted in 2011, requires HHSC, if it is cost-effective and feasible, to implement an EVV system to electronically verify and document through a telephone or computer-based system basic information relating to the delivery of Medicaid acute nursing services. See Act of June 27, 2011, 82nd Legislature, 1st Called Session, Chapter 7, §1.01, 2011 Texas General Laws 5390, 5391-92 (S.B. 7). In addition, the 2012-2013 and 2014-2015 appropriation acts require HHSC to reduce the amount of general revenue funds expended for Medicaid by implementing a plan that may include an initiative to conduct "statewide monitoring of community care and home health through electronic visit verification in Medicaid fee-for-service and managed care." General Appropriations Act, 83rd Legislature, Regular Session, Chapter 1411, Article II, Rider 51(b)(8), at II-100 (Health and Human Services Section, Health and Human Services Commission); General Appropriations Act, 82nd Legislature, Regular Session, Chapter 1355, Article II, Rider 61(b)(8), at II-94 (Health and Human Services Section, Health and Human Services Commission).

The new rule establishes requirements applicable to contractors providing EVV services for Medicaid-enrolled providers and guidelines for Medicaid providers that are required to use an EVV system for services as defined by HHSC. Additionally, the rule defines which Medicaid services require EVV and identifies the data elements that must be included, which will verify the service occurred.

Comments

The 30-day comment period ended February 23, 2014. During this period, HHSC received comments regarding the new rule from Personal Attendant Coalition of Texas (PACT); ADAPT; the Consumer Direction Workgroup; Texas Visiting Nurse Service; and Helping the Aging, Needy and Disabled, Inc. (H.A.N.D.). All of the commenters were generally opposed to the rule or to implementation at this time. A summary of comments related to the proposed new rule and HHSC's responses follow.

Comment: One commenter questioned the propriety of the public hearing, as the organization she represents has raised issues about compliance with the Americans with Disabilities Act (ADA), and HHSC has not yet responded to those concerns.

Response: HHSC disagrees that the hearing was improper. The public hearing was conducted in compliance with all pertinent state statutes. Nothing in any statute bars HHSC from conducting a hearing on a rule that is the subject of a complaint to the Office of Civil Rights.

Comment: One commenter stated that the EVV system is out of compliance with the ADA, a statement that her organization also expressed at the November 2013 Medical Care Advisory Committee (MCAC) meeting, and in a letter submitted to the HHSC Office of Civil Rights. The commenter stated that the savings associated with EVV is understandable, but not if the system is out of compliance with the ADA.

Response: HHSC did not change the rule in response to this comment. The proposed rule requires that EVV vendors meet minimum standard requirements developed by an EVV workgroup to participate in EVV. The minimum standard requirements as set forth in the EVV Request for Proposal (RFP) includes a requirement that EVV systems must be ADA-compliant.

Comment: A commenter suggested that HHSC is rushing too much to implement the EVV requirements. In the view of his organization, HHSC should resolve the issues raised by commenters before implementing.

Response: HHSC did not change the rule in response to this comment and will not delay implementation of the rule. Since 2011, the Texas Legislature has required HHSC to implement an EVV system upon a finding that such a system is cost-effective and feasible. HHSC has determined that it is cost-effective and feasible, and HHSC is therefore following the Legislature's directive.

Nevertheless, HHSC has worked very closely with an EVV workgroup, consisting of both internal and external stakeholders, with EVV experience to address issues, impacts, and operational considerations for statewide implementation of EVV.

The EVV workgroup developed the minimum standard requirements to which all EVV vendors must adhere. Additionally, HHSC will continue to work with all stakeholders on pre-implementation work plans and considerations to ensure successful EVV implementation. HHSC has planned a phased-in approach for EVV implementation (STAR+PLUS, STAR Health, and FFS in Phase 1; STAR in Phase 2) to address and work through any issues that may occur during initial implementation.

Comment: One commenter emphasized the importance of personal attendants helping other people who cannot help themselves and stated that EVV is making personal attendants' jobs harder with more bureaucracy, which will drive people away from being personal attendants.

Response: HHSC did not change the rule in response to this comment. HHSC disagrees that the EVV system will necessarily increase attendants' burdens; rather, HHSC anticipates that EVV will reduce the incidence of time-keeping and record-keeping errors, which will result in less administrative burden to attendants.

Comment: Two commenters expressed concern that the 90% compliance requirement and contract sanctions currently required in the Department of Aging and Disability Services (DADS) EVV program will require providers to hire additional staff and will, at the same time, make it harder to recruit and retain staff.

Response: HHSC did not change the rule in response to these comments. HHSC disagrees that the DADS 90% compliance requirement, which will also apply to the HHSC EVV Program, will result in extra burden for providers, that providers will have to hire additional staff, or that staff retention will be difficult. Rather, HHSC anticipates that EVV will reduce the incidence of time-keeping and record-keeping errors, which will result in less administrative burden to providers.

Comment: One commenter stated that providers must make many phone calls to attendants to verify errors and timing issues with EVV. Attendants are frustrated because every exception must be noted and changes to a schedule, such as a client wanting to suddenly go to the store, are restricted by the system. The system is very time-consuming and frustrating.

Response: HHSC did not change the rule in response to this comment. HHSC will use the same standard EVV reason codes currently in use for DADS EVV Program; these codes are used to provide documentation to clear an exception in the EVV system and complete the visit data. HHSC will continue to work with all stakeholders on pre-implementation work plans and considerations to ensure successful EVV implementation and on-going operations.

Comment: A commenter stated that nothing in the rule allows an individual who receives Consumer Directed Services (CDS) to opt out of EVV and that clarification is needed in the rule.

Response: HHSC did not change the rule in response to this comment. HHSC has communicated to stakeholders, both orally and in writing, that it has no plans at this time to change the requirement for CDS. Thus, each CDS provider continues to have the choice to participate in, or to opt out of, EVV.

Comment: One commenter stated that EVV is a deterrent to consumer-directed services and EVV should not be required for CDS. According to the commenter, using EVV in CDS is problematic; for example, if changes in an attendant's schedule occurs, the attendant must make a special effort to meet EVV requirements.

Response: HHSC did not change the rule in response to this comment. HHSC has communicated to stakeholders, both orally and in writing, that it has no plans at this time to change the requirement for CDS. Thus, each CDS provider continues to have the choice to participate in, or opt out of, EVV.

Comment: A commenter feels that the State will need to increase provider rates for management of EVV.

Response: HHSC did not change the rule in response to this comment. HHSC anticipates that EVV will achieve cost savings by reducing the incidence of time-keeping and record-keeping errors, improving provider's ability to manage field staff more effectively, and improving individual access to services and reliability of service delivery, which overall will result in less administrative burden to providers.

Comment: A commenter stated that the State has not addressed EVV and liability regarding claims. If there is an error in time reported, there is no longer a signed time sheet and the only method to document time is to record and maintain every call. The commenter wonders if the State will provide assistance or protection to providers for claimed hours that no longer require an attendant's signature.

Response: HHSC did not change the rule in response to this comment. In programs or services where EVV is mandatory, EVV eliminates the need or requirements for written record-keeping. In CDS, participation in the EVV program is not mandatory and if a provider opts to partially use EVV or not use it at all, attendants must sign a time sheet. However, there is nothing that prohibits a provider from requiring a signed time sheet in addition to EVV.

Comment: One commenter suggested that the new system will require training, particularly because, according to the commenter, turnover rates at call centers are high.

Response: HHSC did not change the rule in response to this comment. The rule requires every EVV vendor to meet minimum standard requirements developed by the EVV workgroup. At a minimum, an EVV vendor must, among other things, provide initial and on-going training on the EVV system. As part of the statewide implementation of EVV, EVV vendors will educate providers and attendants on the use of EVV systems.

Comment: One commenter voiced a concern that auditors may not be aware of EVV changes that have occurred through letter notification and concerns of whether claims will be recouped.

Response: HHSC did not change the rule in response to this comment. As with any audit conducted for HHSC agencies, programs, or services, HHSC program staff work very closely with auditors to provide subject matter expertise and ensure that audits are conducted according to current policies, rules, and regulations.

Statutory Authority

The new rule is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and Texas Government Code §531.117, which requires HHSC to establish a Medicaid recovery audit contractor program.

The new rule also is adopted in accordance with HHSC's authority under Texas Government Code §531.024172 and Rider 51 of the current appropriations act. See Texas Government Code §531.024172; General Appropriations Act, 83rd Legislature, Regular Session, Chapter 1411, Art. II, Rider 51(b)(8), at II-100 (Health and Human Services Section, Health and Human Services Commission).